Coffin v. Bradbury

Decision Date26 January 1894
Citation35 P. 715,3 Idaho 770
PartiesCOFFIN v. BRADBURY
CourtIdaho Supreme Court

PRACTICE-ERROR AGAINST RESPONDENT.-On appeal by defendants the appellate court will not review errors alleged to have been committed against the respondents.

STATUTE OF FRAUDS-CONSTRUED.-When none of the things are done at the time the bargain is made required to be done and performed under the provisions of section 6009 of the Revised Statutes of 1887 to take a contract of sale out of its provisions the contract cannot be enforced against the purchaser unless he thereafter receives and accepts the property purchased. A receipt and acceptance takes the contract out of the provisions of said section.

EXECUTORY CONTRACTS.-Said section is applicable to executory contracts and not executed ones.

CONFLICT OF EVIDENCE-VERDICT NOT DISTURBED.-When the questions of sale, delivery and acceptance were submitted to the jury under proper instructions by the court, the verdict will not be disturbed when there is a substantial conflict in the evidence.

SALE AND ACCEPTANCE-QUESTION FOR JURY.-When, from the entire evidence, different minds might honestly reach different conclusions as to the sale and acceptance of the property claimed to have been sold, the sale and acceptance are questions for the jury, and their verdict will not be disturbed.

RES GESTAE.-Time is not necessarily a controlling element or principle in the matter of res gestae.

PARTNERSHIP.-When an attempt is made to show a partnership, and there is no evidence whatever showing the same, it is not error for the court to so decide in the presence of the jury.

EXCEPTIONS.-Exceptions will not be considered unless saved.

STATEMENTS-ADMISSIONS-IMPEACHMENT.-Statements and admissions made by a party to a suit may be put in evidence by the opposing party without calling the party's attention to them or laying any foundation for impeachment.

VERDICT-EXCEPTIONS-INSTRUCTIONS.-Where the material issues are fairly submitted to the jury by proper instructions, the verdict of the jury or the order of the court overruling a motion for a new trial will not be set aside by the appellate court on the ground of the insufficiency of the evidence to justify the verdict, where the evidence on such issues is conflicting and no exceptions taken by appellants to the instructions given.

(Syllabus by the court.)

APPEAL from District Court, Ada County.

Affirmed with costs of appeal in favor of respondents.

S. L Tipton and Texas Angel, for Appellants.

The evidence is insufficient to justify the verdict. There was no evidence to show a contract of sale from the plaintiff to the defendants of the personal property described in the complaint. The contract of sale is denied in the answer, and the denial is sufficient to enable the defendants to raise the question of the sufficiency of the contract under the statute of frauds. (Feeney v. Howard, 79 Cal. 525 12 Am. St. Rep. 162, 21 P. 984; Harris v Knickerbocker, 5 Wend. 638; Berrien v. Southack, 26 N. Y. St. Rep. 932, 7 N.Y.S. 324; Fontaine v. Bush, 40 Minn. 141, 12 Am. St. Rep. 722, 41 N.W. 465; May v. Sloan, 101 U.S. 231; Browne on Statute of Frauds, sec. 511; Bliss on Code Pleading, sec. 353.) At common law, delivery is essential to support the count for goods sold and delivered. (1 Benjamin on Sales, p. 334, sec. 325; 1 Chitty on Pleading, 345, 347; 2 Benjamin on Sales, p. 980, sec. 1125, note 6; 1 Benjamin on Sales, p. 327, sec. 314.) The delivery was essential to the right of recovery in this case, inasmuch as the sale was not a consummated one until delivery at Nampa. But the statute of frauds in this case is complete bar to the respondents' right to recover. There was no memorandum such as the statute requires. There was no writing whatever. There was no part of the purchase price paid, and there was no delivery of any portion of the goods to the appellants, and there was no acceptance by them as required by the statute. (Benjamin on Sales, p. 160, sec. 139, citing Blackburn on Sales, 22, 23; Shindler v. Houston, 1 N.Y. 261, 49 Am. Dec. 316, and note; Caulkins v. Hellman, 47 N.Y. 449-452, 7 Am. Rep. 461; Stone v. Browning, 51 N.Y. 211; Brewster v. Taylor, 63 N.Y. 587; Cooke v. Millard, 65 N.Y. 352, 373, 22 Am. Rep. 619; Shephered v. Pressey, 32 N.H. 57; Kerkhof v. Atlas Paper Co., 68 Wis. 674, 32 N.W. 766; Terney v. Doten, 70 Cal. 399, 11 P. 743; Hinchman v. Lincoln, 124 U.S. 38, 8 S.Ct. 369; Kirby v. Johnson, 22 Mo. 354; Bowers v. Anderson, 49 Ga. 143; Baker on Sales, c. 14; 1 Benjamin on Sales, sec. 140, note 2, and cases cited; Townsend v. Hargraves, 118 Mass. 333.) Mere words are not a sufficient delivery and acceptance, but there must be some unequivocal act or conduct over and beyond the mere terms of the verbal agreement, indicating on the one hand an intent to vest the ownership and absolute dominion in the vendee, and, on the other hand, an intent to take the goods as owner of such title as the contract calls for in performance of the agreement. (Gaudet v. Belknap, 1 Cal. 402; Malone v. Pluto, 32 Cal. 103; Phillips v. Hunnewell, 4 Greenl. 376; Edwards v. Grand Trunk Ry. Co., 54 Me. 105; Snow v. Warner, 10 Met. 136, 43 Am. Dec. 417; Dule v. Simpson, 21 Pick. 384; Denny v. Williams, 5 Allen, 3; Alderton v. Buchoz, 3 Mich. 322, 329; Kirby v. Johnson, 22 Mo. 354; Bass v. Walsh, 39 Mo. 198; Matthiesson v. McMahon, 38 N. J. L. 541; Hinchman v. Lincoln, 124 U.S. 38, 8 S.Ct. 369; Cooke v. Millard, 65 N.Y. 352, 373, 22 Am. Rep. 619; Shepherd v. Pressey, 32 N.H. 56; Bailey v. Ogden, 3 Johns. 421, 3 Am. Dec. 509; Phillips v. Bristol, 2 Barn. & C. 511.) It was sufficient that the bill of exceptions was contained in the statement, and it was not necessary that a separate and distinct document denominated a bill of exceptions should be made. A statement of the case containing the exceptions was sufficient. (Lockhart v. Rollins, 2 Idaho, 540, 21 P. 413; Yates v. Smith, 40 Cal. 669; People v. Lee, 14 Cal. 510.) Declarations to become evidence as a part of the res gestae must accompany the act which they are supposed to characterize, and must so harmonize with it as to be obviously a part of the same transaction. (Moore v. Meacham, 10 N.Y. 207; Enos v. Tuttle, 3 Conn. 250; Cherry v. Butler, 17 S.W. 1090; Tisch v. Utz, 142 Pa. St. 186, 21 A. 808; Conlan v. Grace, 36 Minn. 276, 30 N.W. 880; Dawson v. Pogue, 18 Or. 94, 22 P. 640; 2 Wharton on Evidence, sec. 1174; State v. Daugherty, 17 Nev. 376, 30 P. 1074; People v. Dewey, 2 Idaho, 83, 6 P. 103, 5 West Coast Rep. 812; Binns v. State, 57 Ind. 46, 26 Am. Rep. 48.) Whether a partnership exists or not is a question of fact. (McDonald v. Matney, 82 Mo. 358; McMullan v. McKenzie, 2 Greenl. 368; Hunter v. Hubbard, 26 Tex. 549; Daggett v. Jordan, 2 Fla. 541, 549; Dulany v. Elford, 22 S.C. 304, 308; Kahn v. Central Smelting Co., 2 Utah, 371.) When the language of a written contract is neither ambiguous nor technical, parol evidence is not received to explain it and so establish a new term to it. (Grace v. American Central Ins. Co., 109 U.S. 283, 3 S.Ct. 207; Partridge v. Insurance Co., 15 Wall. 573; Condce & Co. v. Citizens' Ins. Co., 4 F. 143.)

George H. Stewart and W. E. Borah, for Respondents.

It is the delivery in pursuance of the contract, and not the time which makes the sale valid. In other words, if the goods are delivered it takes it out of the statute, although the delivery be made long after the sale. The statute does not require the delivery to be made at the time of sale, but is sufficient if made at all. (McKnight v. Dunlop, 5 N.Y. 537, 55 Am. Dec. 370; Van Woert v. Albany Ry. Co., 67 N.Y. 538; Jackson v. Tupper, 101 N.Y. 515, 5 N.E. 65; Marsh v. Hyde, 3 Gray, 331; Townsend v. Hargraves, 118 Mass. 325; McCarty v. Nash, 14 Minn. 127; Gaslin v. Pinney, 24 Minn. 322; Ortloff v. Klitzke, 43 Minn. 154, 44 N.W. 1085; Schmidt v. Thomas, 75 Wis. 529, 44 N.W. 771; Sullivan v. Sullivan, 70 Mich. 583, 38 N.W. 472; Somers v. McLaughlin, 57 Wis. 358, 15 N.W. 442.) The statute of frauds only relates to executory contracts, and not executed contracts; full performance takes it out of the statute. (Hinkle v. Fisher, 104 Ind. 84, 3 N.E. 624; King v. Jarmon, 35 Ark. 190, 37 Am. Rep. 11; Cartan v. David, 18 Nev. 311, 4 P. 61; Dodge v. Crandall, 30 N.Y. 294; Brown v. Farmers' Loan etc. Co., 117 N.Y. 266, 22 N.E. 952.) Delivery to an attorney, agent or anyone contemplated by the purchaser is sufficient. (Michelstetter v. Weiner, 82 Wis. 298, 52 N.W. 435; Alexander v. Oneida Co., 76 Wis. 56, 45 N.W. 21; Jarvin v. Maxwell, 23 Wis. 51.) Delivery to the common carrier in this case was sufficient. The goods were shipped in the name of Bradbury & Co., at their request. (Bullock v. Tschergi, 13 F. 345.) Question of acceptance is a question for the jury, and their finding is conclusive. (Garfield v. Paris, 96 U.S. 557; Galvin v. Mackenzie, 21 Or. 184, 27 P. 1039; Theilen v. Rath, 80 Wis. 263, 50 N.W. 183; Baker on Sales, sec. 282a.) Where there is a conflict of evidence, the supreme court will not inquire into the sufficiency of the evidence to sustain the verdict. We will not burden the brief in an attempt to cite all the authorities on this point. (Folios 88, 89, 93, 191-194, 198, 200; Campe v. Meierdiercks, 87 Cal. 290, 25 P. 419; Lynch v. Welby, 87 Cal. 441, 25 P. 548; De Brutz v. Jessup, 54 Cal. 182; Altschue v. Doyle, 48 Cal. 535; Macy v. Davila, 48 Cal. 647; Higurra v. Bernal, 46 Cal. 581; Lorenzana v. Camarillo, 41 Cal. 467; McGarrity v. Byington, 12 Cal. 432; Taft v. Kyle, 15 Nev. 416; Simpson v. Williams, 18 Nev. 432, 4 P. 1213; Anisley v. Idaho World Printing Co., 1 Idaho, 641.) Without reference to conflict of evidence, if there is any evidence, however slight, tending to sustain a finding or verdict it is conclusive as to the...

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24 cases
  • Anderson v. Great Northern Railway Co.
    • United States
    • Idaho Supreme Court
    • December 7, 1908
    ... ... gestae , and as such was admissible, and in support ... thereof cites the following cases: Coffin v ... Bradbury , 3 Idaho 770, 95 Am. St. Rep. 37, ... [99 P. 97] ... 35 P. 715; Missouri, K. & T. R. Co. v. Vance (Tex ... Civ.), 41 S.W ... ...
  • Wilson v. Joe Boom Co., Ltd.
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    • Idaho Supreme Court
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    ... ... made at the time or shortly after the occurrence, is part of ... the res gestae. ( Coffin v. Bradbury, 3 Idaho 770, 95 ... Am. St. 37, 35 P. 715; State v. McGann, 8 Idaho 40, ... 66 P. 823; Anderson v. Great Northern Ry. Co., 15 ... ...
  • Erickson v. Edward Rutledge Timber Co.
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    ... ... particular case has occasioned great difficulty and is left ... pretty largely to the sound discretion of the trial court ... (Coffin v. Bradbury, 3 Idaho 770, 95 Am. St. 37, 35 ... P. 715; 3 Wigmore on Evidence, sec. 1750, p. 2257; State ... v. McDaniel, 68 S.C. 304, 102 Am. St ... ...
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    ... ... soon after the happening of the accident and while the ... engineer was still unnerved and shocked by the accident ... ( Coffin v. Bradbury, ... [44 P.2d 294] ... 3 Idaho 770 (784), 35 P. 715, 95 Am. St. 37; Wilson v ... St. Joe Boom Co., 34 Idaho 253, 264, 200 P ... ...
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